PERM Prevailing Wage RFIs: A New Focus on "Unanticipated Locations"

The PERM process for green card sponsorship is already notorious for its complexity, and a recent uptick in Requests for Further Information (RFIs) is adding another layer for employers to navigate. Specifically, the Department of Labor (DOL) is scrutinizing the frequency of visits to "unanticipated locations" for certain positions. Let's break down what this means and why it matters.

The RFI in Question

The DOL is increasingly issuing RFIs that ask:

• How often does the beneficiary travel to unanticipated locations?
• What percentage of their time is spent at these locations?
• What activities are performed at these locations?

This line of inquiry is particularly common for positions involving travel, such as IT consultants, sales professionals, or field engineers.

The Farmer Memo and Its Significance

The "Farmer MemoFarmer Memo" (published in 1994 by the DOL) provides guidance on determining the work location for PERM purposes. For roles involving travel to unanticipated locations, the memo states that the employer's headquarters (or a home office) should be the designated work location. This is because the employer can't reasonably predict where the beneficiary will be traveling.

The Disconnect

The recent RFIs seem to contradict the Farmer Memo's guidance. By asking about the frequency of visits to unanticipated locations, the DOL implies that these locations could be the actual worksite, not the headquarters. This is problematic because:

1. It creates uncertainty: Employers are left wondering whether to list the headquarters or the most frequent travel location as the worksite.
2. It increases the risk of audits: Inconsistent information between the PERM application and the RFI response could raise red flags for the DOL.
3. It impacts prevailing wage determination: The work location directly affects the prevailing wage level assigned to the position.

What Employers Should Do

If you receive an RFI asking about unanticipated locations, here's how to approach it:

1. Review the Farmer Memo: Familiarize yourself with its guidance on work locations for positions involving travel.
2. Consult an immigration attorney: Seek expert advice on how to respond to the RFI accurately and effectively.
3. Gather detailed information: Collect data on the beneficiary's travel patterns, including frequency, duration, and activities performed at each location.
4. Emphasize the headquarters: In your RFI response, clearly state that the headquarters is the designated worksite and explain how the travel fits within the job duties.

The Bigger Picture

This increased scrutiny of "unanticipated locations" is part of a broader trend of the DOL tightening PERM regulations. It's crucial for employers to stay informed about these changes and work with immigration professionals to ensure compliance and avoid delays in the green card sponsorship process.

Let me know if you'd like any other sections added or expanded on.

F and M student visas can now be issued up to 365 days in advance of the I-20 program start date

The U.S. Department of State updated its guidelines allowing F and M students to apply for their student visas to study in the United States up to 365 days prior to the start date of the program as listed on the Form I-20. The Form I-20 will be issued twelve to fourteen months ahead of the program start date. However, Students applying for F and M visas will be allowed to enter the United States up to 30 days before their program start date.  

As you may be aware, earlier the students were not permitted to schedule visa interview appointments more than 120 days prior to the program start date as listed on the Form I-20. Additionally, the I-20 forms could not be issued by educational institutions more than four to six months ahead of the program start date.  

New USCIS Policy June 24, 2022 on 3–/10-Year Unlawful Presence Bars

In this blogpost we’ll discuss New USCIS guidance dated June 24, 2022.

 The guidance states that “a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA §212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.”

 Note that the new guidance does not address or otherwise eliminate inadmissibility issues due to the permanent bar at INA §212(a)(9)(C) or the inspection and admission requirement for adjustment of status, notwithstanding the reference in the policy to a return to the United States “without authorization.”

 

The new guidance confirms that location of the person does not matter which means the bars can be served in whole or in part inside the United States. Specifically, the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility under INA §212(a)(9)(B).”

 The current process for pursuing the §212(d)(3) waiver (“d3 waiver”) typically requires spending at least several months abroad waiting for a decision, as the waiver application can generally only be submitted at or after the consular interview after which it is forwarded by the consulate to the CBP Admissibility Review Office for further processing. An approved §212(d)(3) waiver removes that bar for temporary visa purposes, allowing the DREAMer to apply for a nonimmigrant visa, such as an H-1B, at a consulate or port of entry, and then (if the visa is granted) enter the United States in valid nonimmigrant status with work authorization.

 Similarly, a noncitizen who was admitted to the United States but overstayed may be eligible for permanent residence through marriage to a U.S. citizen without having to go to his/her home country.

In addition, an undocumented foreign national who qualifies for adjustment of status pursuant to §245i may be able to seek a green card in the United States through an employer-sponsored petition or a family-based petition.

 

 

H-1B mistakes that cost Employers

·        Can the foreign national pay H-1B fees?

 

The short answer is “NO”. A foreign national must not pay any fees associated with H-1B (with few exceptions). Authorized H-1B deductions are clearly indicated in the DOL fact sheet. See   https://www.dol.gov/agencies/whd/fact-sheets/62h-h1b-pay- deductions

 

Premium Processing fee is not that clear. Fundamental rule is that  the employer expense cannot  be passed to the beneficiary. However, where the employer had objected to paying the premium processing fee, and premium processing was requested at the nonimmigrant’s behest, the expense was found not to be an employer expense.

 

·        Penalties for forcing H-1B employee to stay employed?

 

Employers are prohibited from requiring an H-1B employee to pay a penalty for ceasing employment prior to an agreed-upon date unless DOL finds that the amount constitutes liquidated damages under relevant state law.

 

For the amount to be considered liquidated damages, DOL requires that it meet the five criteria for deductions from wages and that it conform to the applicable state law for liquidated damages. Generally the five criteria include:

i.   Are amounts “fixed or stipulated by the parties at the inception” of the

employment agreement;

ii.   Are “reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party’s breach of the contract”;

iii.   Take into account the respective power and relationship of the parties, so that

fraud or oppression by one party results in the amount being considered a prohibited penalty rather than liquidated damages; and

iv.   Require that the stipulated amount take into account whether the breach is total or partial—in other words, account for the percentage of the agreed duration of employment that was completed. (

 

·        Bona Fide H-1B Terminations and Employer Steps to End the Pay Obligations. Is a Flight Home Required?

 

a.   “Prohibition Against ‘Benching’

i.   Payment obligations cease where there has been a “bona fide termination of the employment relationship.” Rather than define this term, the DOL regulation passively states that “DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled and require the employer to provide the employee with payment for transportation home under certain circumstances.

ii.   Administrative appeal decisions have found that to show a bona fide termination,

an employer should “demonstrate that it:

 

(1) expressly terminated the employment relationship with the H-1B worker;

(2) notified USCIS of the termination so that the petition could be cancelled; and (3) provided the worker with the reasonable cost of return transportation to his or her home country.”

 

Note: If the employer notifies DHS of a termination, but behaves in a way that suggests an ongoing employment relationship, DOL may conclude that a bona fide termination has not occurred.  

USCIS rescinds Trump-era memo on computer programmers

Way Memo - 2000. Click here

Trump memo - 2017. Click here

Biden Memo - 2021. Click here

SUMMARY

The panel reversed the district court’s grant of summary judgment for the U.S. Citizenship and Immigration Services (USCIS), and remanded, concluding that USCIS’s denial of an H-1B temporary worker visa was arbitrary and capricious.

Innova Solutions, Inc. (Innova) wanted to hire a citizen of India with a bachelor’s degree as a computer programmer and petitioned for an H-1B “specialty occupation” visa on his behalf.

Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”

Innova challenged USCIS’s denial of the visa in district court under section 706 of the Administrative Procedure Act, contending that the decision was arbitrary and capricious. The district court rejected that argument and granted summary judgment for USCIS, concluding that “the OOH description for the Computer Programmer occupation does not describe the normal minimum educational requirements of the occupation in a categorical fashion” because “at least some Computer Programmer positions may be performed by someone with an associate’s degree.”

 The panel concluded that USCIS’s denial of the H-1B visa petition was arbitrary and capricious.

1. First, the panel explained that there is no daylight between typically needed, per the OOH, and normally required, per the regulation, and that USCIS’s suggestion that there is “space” between these words is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The panel also explained that the regulation is not ambiguous and deference to such an implausible interpretation is unwarranted.
2. Next, the panel concluded that USCIS’s decision was arbitrary and capricious because it misrepresented the OOH by stating that it provides that most computer programmers have a bachelor’s or associate’s degree when, in fact, the OOH provides that most have a bachelor’s degree.
3. Finally, the panel concluded that USCIS’s decision as arbitrary and capricious because USCIS failed to consider key evidence, namely, the OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.”

Analysis

1. USCIS’s decision in light of that evidence was arbitrary and capricious. Mirroring the regulatory language, the decision explains: “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation.” Although the OOH, a career education resource published by a different agency, did not use the precise language of the H-1B regulation, it made clear that a bachelor’s degree is not only common but typically needed. There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms. Normally, Merriam-Webster Thesaurus, https://www.merriam- webster.com/thesaurus/normally. The Supreme Court uses these words interchangeably in the same sentence.⁵  So do we.⁶ So does the United States Solicitor General.⁷ And so does the federal government.⁸
2.  USCIS’s contrary reasoning is beyond saving. There is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required. See Dep’t of Com., 139 S. Ct. at 2569 (citation omitted); Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (noting that the court “is at a loss to see a ‘rational connection’” in the same context). USCIS’s suggestion that there is “space” (which we understand to connote a difference in meaning) between these words is “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.
3. In response, USCIS points to OOH language stating that “some employers hire workers with an associate’s degree.” But the fact that some computer programmers are hired without a bachelor’s degree is entirely consistent with a bachelor’s degree “normally [being] the minimum requirement for entry.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) (emphasis added); see also Taylor Made Software, Inc. v. Cuccinelli, 453 F. Supp. 3d 237, 246 (D.D.C. 2020) (“[USCIS] cannot simply rely on the OOH’s recognition that an unspecified number of contrary cases exist. That is not a rational treatment of the language in the OOH.”) Normally does not mean always.[1] See Normally, Cambridge Dictionary (2019), https://dictionary.cambridge.org/us/dict ionary/english/normally (defining “normally” as “usually or regularly” and “usually, or in most cases” (emphasis added)); see also United States v. Corey, 232 F.3d 1166, 1180 (9th Cir. 2000) (distinguishing “normally” from “always”); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1488  (9th Cir. 1992) (same); 5  C.F.R.  § 551.202(h)(same). While agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (limiting Auer deference to regulations that are “genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation”); Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002) (noting that an agency “does not have the discretion to misapply the law.”). USCIS’s unreasonable reading of the regulatory language here is therefore arbitrary and capricious. See Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“Where the objective criteria of a regulation are clearly met, there is no room for an agency to interpret a regulation so as to add another requirement.”).
4. On appeal, USCIS tries to distance itself from the “authoritative source” upon which it chose to rely exclusively in its decision. USCIS contends that the OOH alone cannot establish “whether an occupation qualifies per se as a specialty occupation” because “[i]n some instances, as with the Computer Programmer occupation here, it is not a sufficient source of information.” In other words, where the OOH states that some positions do not require a bachelor’s degree, USCIS does not consider the OOH a “sufficient source of information.” That argument is related to the basis for the district court’s decision: because some computer programmers are hired with associate’s degrees, Innova “had the burden to show that the particular position offered to Mr. Dodda was among the Computer Programmer positions for which a bachelor’s degree was normally required.”
5. These arguments are flawed. First, by demanding additional proof anytime some positions within an occupation require less than a bachelor’s degree, USCIS again improperly equates “normally” with “always.” These contentions also misconstrue the regulation and flout USCIS’s own approach to applying it. While it is true that the regulation refers to the requirement of a bachelor’s degree “for entry into the particular position,” 8 C.F.R.§ 214.2(h)(4)(iii)(A)(1) (emphasis added), USCIS determined that Dodda’s “particular position” is indeed computer programmer, and not a sub-group within that classification. As USCIS told the district court, this is the first of two steps in USCIS’s analysis of the first regulatory criterion.
6. Second, “the agency categorically determines whether the educational requirements of that occupation group in the OOH normally requires for entry at least a bachelor’s degree in a specific specialty.” Therefore, by USCIS’s own admission, showing that the matching occupational group in the OOH normally requires a bachelor’s degree satisfies the regulation. No additional proof about whether the position falls within some sub-group is required. By requiring Innova to show its “particular position . . . was among the Computer Programmer positions for which a bachelor’s degree was normally required,” the district court’s ruling functionally requires visa petitioners to demonstrate that their particular position actually requires a bachelor’s degree. That approach is plainly inconsistent with the language of the first regulatory criterion and USCIS practice. Moreover, it conflates the first criterion, which only asks whether the position normally requires a bachelor’s degree, and the third criterion, which asks whether the employer normally requires a  bachelor’s  degree  for  the  position.  Compare 8 C.F.R.            § 214.2(h)(4)(iii)(A)(1),  with       id. § 214.2(h)(4)(iii)(A)(3). And as both parties acknowledge, the four criteria are independent—a petitioner need only satisfy any one criterion to establish that a position is in a “specialty occupation.” Id. § 214.2(h)(4)(iii)(A).
7. USCIS’s decision was also arbitrary and capricious because in misrepresenting the OOH, it “offered an explanation for its decision that [ran] counter to the evidence before [it].” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). We have required agency decisions to accurately reflect the evidentiary record. See Cerrillo-Perez v. INS, 809 F.2d 1419, 1422 (9th Cir. 1987) (“[W]hen important aspects of the individual claim are distorted or disregarded, the BIA has abused its discretion.” (internal quotation marks and citation omitted)).
8. According to the USCIS decision, the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify.” But rather than suggesting a “wide range,” the OOH stated: “Most computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” The USCIS decision continues: “the OOH indicates that most computer programmers obtain a degree (either a bachelor’s or an associate’s degree) in computer science or a related field.” But as the district court acknowledged, that “mischaracterizes the OOH.” The OOH did not state that most computer programmers have either a bachelor’s or an associate’s degree, but rather that most “have a bachelor’s degree in computer science or a related subject.”
9. While a factual error is not necessarily fatal to an agency decision, whether most programmers have a bachelor’s (as opposed to either a bachelor’s or associate’s) degree is the core question upon which USCIS’s determination here hinged. Because we may only affirm on the basis provided by the agency, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), and in any case, the agency has not disavowed this view, this serious misconstruction of the only source considered was arbitrary and capricious.
10. Finally, USCIS failed to consider key evidence. A decision is arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). “We will defer to an agency’s decision only if it is ‘fully informed and well-considered.’” Sierra Club v. Bosworth, 510 F.3d 1016, 1023 (9th Cir. 2007) (citation omitted). The OOH listed “bachelor’s degree” as the “[t]ypical level of education that most workers need to enter this occupation.” That language speaks directly to the question whether a bachelor’s degree is normally required for computer programmers. Indeed, it preempts USCIS’s core argument on appeal: that “there is a difference between workers in a particular occupation ‘having’ a degree and what the industry (including other employers) normally ‘requires,’” and that the OOH only establishes the former. Despite appearing at the top of the OOH’s landing page for computer programmers, this OOH language was not mentioned anywhere in USCIS’s decision. USCIS’s failure to consider evidence so central to the inquiry is yet another (and independent) reason why its decision was arbitrary and capricious, and why we must reverse.

 

REVERSED AND REMANDED.

 

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[1] That USCIS recently issued an interim final rule amending this regulation to delete the word “normally” from the first criterion so that that a bachelor’s degree is “always the requirement” for the occupation confirms this common sense reading of the prior regulatory language. See 85 Fed. Reg. at 63,926. As discussed above, this amendment does not impact the instant appeal.

 

Definition of US Worker

U.S. workers, under Department of Labor rules, are work-authorized individuals who have indefinite work authorization not tied to a specific employer, including U.S. citizens and nationals, lawful permanent residents, refugees, and asylees. 20 C.F.R. § 656.3.

Neufeld's 2009 Memo - ‘‘Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act’’

available at https:// www.uscis.gov/sites/default/files/USCIS/Laws/ Memoranda/Static_Files_Memoranda/2009/ revision_redesign_AFM.PDF. 

or Click here